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Used Microsoft Licenses For Sale
An anonymous reader writes "A secondhand dealer in Britain has been given the green light by Microsoft to resell software licenses from insolvent or downsizing companies, ZDNet is reporting. The reseller, Disclic, is legally allowed to sell the licenses at a discounted rate of between 20 percent to 50 percent, much lower than Microsoft's resellers. Partners of the software giant have expressed unhappiness over the issue as it undercuts their business. "I've never heard the like, and I am stunned," said Gordon Davies, the commercial director of Microsoft reseller Compusys. "This is clearly going to take away revenue from the channel and from Microsoft," he said."
. . . a revised EULA in the next Fix Pack.
If, as TFA suggests, this is a loophole in the licensing agreements, a simple change to the already largely ignored EULA should adroitly close it.
Raoul Mitgong: Unhelpful.
I totally agree that treselling used licences of MS is OK. It is logical and right. If you buy a licence for a Windows OS, no reason this licence can't be resold under the same terms...
However, it is important to note that licence is not a simple product like a TV screen or a fruit.
Here are three reasons:
1. Lets say a licence was bought discounted as part of a non-profit or educational licence pack (schools, universities, organizations..). Such a licence should not be resold to a business entity or a private user.
2. A licence bares commitments by the client, more than most products. For example, you are not allowed to share the product freely, or copy it. (maybe not only because of licencing issues but also because of such). In some cases, a licence allows the use of a product only to a specific person, or under specific terms (specific hardware, environment). For example, not allowing the use of a product by non-development personnel. Not allowing the use of a product on a multiple CPU computers, etc...
3. Partly like #2, licencing sometimes are regional. Some people suggest that if its allowed in the UK for now, it should be open to international trade as well. Well.. not necessarily. For example, some licences are regional. Sometimes for good reason (allowing 3rd world countries the use of software that is very expensive for them if they had to buy it in other countries). OR limits of technology/security export. Sometimes cross-border trading has to be limited. That is true - noone likes to be limited, but sometimes there might be a good reason to accept such limitation
Can't think of any other differences for now, but those two demonstrate in my opinion why there are some differences with licencing.
With that said, reselling of a licence under the same obligations/terms as the original purchase is something I think is very right and just and should be implemented world-wide.
Just my 2 cents.
"From the moment I could talk, I was ordered to listen" - Cat Stevens
He's "stunned"
Well, according to Microsoft, it's within the parameters of the license agreement and MS has OK'ed the selling. So Davies is just pissed off because somebody can undercut him. Booo hoo.
Yes, humour is fine, but the scary point about this is that Disclic are so afraid of Microsoft that they asked. In theory, IMO, purchasing a software licence should be similar to a 'debt': The buyer pays a fee for the assurance that the 'debt' (software assurance) will be honoured in future.
Either the agreement specifies that licenses aren't transferable, or it doesn't. If it does then Disclic have no grounds for doing this - Microsoft will not have to honour the 'debt'. In this case, even with Microsoft's permission, Microsoft are not obliged to honour the agreement.
If it doesn't then Disclic don't have to ask Microsoft's permission. Why did they bother? Because they were scared, I'll bet. Scared of mindless lawsuits - they'll run out of money before Microsoft do.
Ashton
(-(friend^2))^(1/2)
Incoming mod-bombing for having a different viewpoint, 2 o'clock! Heads up!
That would probably only apply to individually licensed software, not those purchsed through volume licensing programs, which is what this is about. It is possible that you could resell or transfer your entire license block, but probably not do so per seat if it was forbidden in the license agreement.
Everyone is always screaming about 'fair use' rights. They are being taken away, and we are right to kick, scream and shreik the whole way. However another branch of eroded rights are 'unregulated rights.' Fair use is a small area of rights that would otherwise be given to the copyright holder (like copying) but is given to the user under certain circumstances (like personal use).
In the same way our unregulated rights are being lost. Reselling is an unregulated right. The fact that software companies don't like it, or put in their EULA that resales are illegal, doesn't matter (if companies put in a eula a clause restricting your right to free speech it wouldn't be enforcable either). I have been looking for someone to fight this for a long time, I'm glad someone is finally making this an issue.
I have a new laptop I bought recently that included a bundled Windows XP Home. It's a dedicated Linux box now, and I honestly have no use for Windows on the machine. Maybe sometime in the near future, I can resell the license and get my money back for something I never used?
You know the drill: IANAL, but I am a law student. Also, I view EULAs to be legal abominations that should not be enforced by state or federal courts for a number of policy reasons.
reselling Windows is a legal right regardless of the contents of the EULA
No. Reselling Windows is explicitly a legal right regardless of the contents of the EULA in those jurisdictions that have ruled so. A federal district court decision is binding only in that district. A district may be anywhere from a fourth to a whole of a state. California and Texas both have four districts, so based solely on your referenced decisions this behavior is explicilty allowed, as a matter of law, only in those parts of those states.
And even then, it's not a given. I'd have to read the opinions (don't have time now), but if the judges actually relied on federal law (copyright right of first sale) as opposed to sitting in diversity and applying state contract law (which EULAs tend to fall under), then it would be binding. If the courts relied on state contract law, then the decision isn't even binding on those state courts that fall within the district. It does, however, remain persuasive ("persuasive" being a term of art.) Also, sister districts within a state tend to look at each other as very persuasive.
As a quick refresher, federal district court decisions relying on federal law are binding on state and federal courts in those same districts. Federal circuit courts relying on federal law are binding on state and federal courts in those same circuits (which cover multiple states). Federal supreme court decisions relying on federal law are binding on state and federal courts throughout the nation. If any federal court sits in diversity and relies on state law, then the decision is only persuasive, and is less persuasive outside of the federal court's jurisdiction.
- Neil Wehneman
My legal education, in nifty podcast format
Microsoft probably had to consent, otherwise they would have lost in court anyway. Microsoft Germany already lost a similar case in german court, where they tried to forbid a computer store (Snogard) to buy used licenses from people who don't need them (installing from a different source for instance) and bundle them with the shop's computer offerings.
Microsoft lost badly in court, mainly because of the First Sale doctrin (which in Germany is called Erschoepfungsgrundsatz).